Search form

Featured Topics

Protecting rights and facilitating stable relationships among federal agencies, labor organizations, and employees while advancing an effective and efficient government through the administration of the Federal Service Labor-Management Relations Statute.

You are here

United States Environmental Protection Agency, New York, New York (Agency) and American Federation of Government Employees, Council 238 (Union)

MEMORANDUM

64 FLRA No. 26

FEDERAL LABOR
RELATIONS AUTHORITY

WASHINGTON,
D.C.

_____

UNITED STATES DEPARTMENT
OF DEFENSE

UNITED STATES ARMY
AERONAUTICAL SERVICES AGENCY

FORT BELVOIR,
VIRGINIA

(Agency)

and

AMERICAN
FEDERATION OF GOVERNMENT EMPLOYEES

AFL-CIO

(Labor
Organization/Petitioner)

WA-RP-08-0091

_____

ORDER GRANTING IN
PART AND DENYING IN PART APPLICATION FOR REVIEW, AND REMANDING TO REGIONAL
DIRECTOR

October 22, 2009

_____

Before the
Authority: Carol Waller Pope, Chairman and

Thomas M. Beck and
Ernest DuBester, Members

I.Statement
of the Case

This
case is before the Authority on an application for review (the application) filed
by the Labor Organization/Petitioner (the Union) under § 2422.31 of the
Authority’s Regulations.[1]
The Agency filed an opposition to the Union’s application.

The
Union seeks review of two related decisions of the Regional Director (RD):
(1) Decision and Order Clarifying Eligibility to Vote in Representation
Election (Challenges Decision); and (2) Decision and Order Dismissing
Objections to Election (Objections Decision).[2]
In the Challenges Decision, the RD found that employee Schwinn is not properly
included in the petitioned-for unit because he is engaged in security work that
directly affects national security under § 7112(b)(6) of the Federal Service
Labor-Management Relations Statute (the Statute).[3]Id. at 8. In the Objections Decision, the RD declined to address the
status of employee Owens.[4]
Application at 2, 10.

For
the reasons set forth below, we deny the Union’s application with regard to
Owens, grant the application with regard to Schwinn, and remand the issue of
Schwinn’s status to the RD for appropriate action.

II. Background
and RD’s Decisions

A. Procedural Background

The Union filed a petition seeking
a representation election. The Agency challenged the inclusion of six
employees in the proposed unit, and a hearing was held to determine the status
of those six employees. At the conclusion of the hearing, the Hearing Officer
stated that the Authority would clarify positions after the election, if such
clarification were necessary. Hearing Transcript (Tr.) at 100. Subsequently,
the Union withdrew its objections to the Agency’s proposed exclusion of two of
the six employees, leaving in dispute the status of four employees: William
McCormick (McCormick), Sydney Tutein (Tutein), Owens, and Schwinn. The parties
stipulated that if any of these four employees voted in the election, their
votes would be challenged.

Later, a representation election
was held pursuant to a consent election agreement approved by the RD. On the
day of the election, the Agency conceded that McCormick was eligible to be in
the unit and to vote; the Agency did not challenge McCormick’s ballot.[5]
A total of eight ballots were cast: four unchallenged ballots in favor of
representation, two unchallenged ballots against representation, and two
challenged ballots -- one cast by Schwinn and one cast by Tutein. It is undisputed
that Owens did not vote in the election.[6]

After the election, the RD issued
an order for post-hearing briefs concerning the bargaining-unit eligibility of
Schwinn and Tutein. Motion Denial at 1. The RD stated that “[i]n order to
most efficiently process the petition, this decision will address only the
bargaining unit status of the determinative challenged ballot voters, Schwinn
and Tutein.”[7]
Challenges Decision at 1. Thereafter, the Union filed an Objection to the
Conduct of Election, in which it disagreed with: (1) the RD’s decision to
limit the briefs to Schwinn and Tutein when the hearing had been held regarding
four employees; and

(2) the RD’s statement that “should [the Union] prevail in
the election it will be required to submit a clarification of unit petition to
clarify the status of” Owens. Motion

Denial at 2. The Union filed a Motion to Postpone
Post-Hearing Briefs Due Date indefinitely, which the RD denied because the
Union “failed to demonstrate how the [order for post-hearing briefs limited to
Schwinn and Tutein] constitutes an inefficient use of time and resources when
it was undertaken to directly resolve the underlying [Union] petition for
election.” Id.

Subsequently, the RD issued both the
Objections Decision and Challenges Decision, which are discussed below.

B. RD’s
Decisions

The RD found that Schwinn, an
Aeronautical Information Specialist, “has not read, seen or heard classified
information” while performing his regular duties, although Schwinn “possessed a
secret security clearance at the time of the hearing.” Challenges Decision 3.
The RD further found that Schwinn participated in three Department of Defense
working groups -- the Digital Working Group, the Digital Aeronautical
Transformation Working Group, and the Vertical Obstruction Working Group -- and
that each group meets separately every six months. Id. at 4. In this
regard, the RD noted that Schwinn attended a Digital Working Group meeting that
“included a briefing on classified information with regard to National
Geospatial Intelligence[,]” and that this classified information concerned “intelligence
capabilities.” Id. The RD also found that on “two other occasions,
Schwinn attended working group meetings during which the meeting rooms were
cleared of group members who lacked security clearances so that classified
matters could be discussed.” Id.

Based on the foregoing, the RD determined
that “Schwinn accessed classified information on numerous occasions while
attending the semi-annual working group meetings[,]” and that, consequently,
Schwinn’s work “involves regular access to classified information that
addresses intelligence capabilities within the context of supporting the
various branches of the military.” Id. at 7. The RD concluded that
Schwinn is engaged in security work that directly affects national security
and, therefore, that his position is excluded from the unit under § 7112(b)(6)
of the Statute.

In the Objections Decision, the RD
denied the Union’s objections regarding the RD’s failure to direct the parties
to brief the unit eligibility of Owens. In this connection the RD determined
that he was not required to issue a Decision and Order prior to the election,
stating:

After the hearing in this case, the
undersigned approved a consent election agreement and today is issuing a
Decision and Order resolving the dispute over the bargaining unit eligibility
of the two voters in the election whose eligibility can determine whether a
majority of the valid votes cast at the election were for representation by
[the Union]. The Authority Regulations do not expressly require that a
Decision and Order concerning bargaining unit eligibility of disputed potential
voters be issued before an election is held. Even if they do, [the Union] effectively waived its right to a Decision and Order before the election was held by
entering into a consent election agreement.[[8]]

Objections Decision at 3.

The RD stated that “[s]ince the
petition in this case was for an election, limiting the eligibility
determination to [the] two [determinative, challenged] voters is all that is
necessary to satisfy the purpose of the petition.” Id. at 4. Accordingly,
he declined to consider Owens’ eligibility.

III. Positions
of the Parties

A. Union’s
Application

The Union contends that the RD
failed to apply established law and committed a clear and prejudicial error
concerning substantial factual matters regarding Schwinn and Owens. See
Application at 1-2, 10.

With regard to Schwinn, the Union
disputes the RD’s determination that Schwinn is engaged in “security work”
under § 7112(b)(6) of the Statute because, according to the Union, Schwinn’s
work does not involve regular access to classified information, as required
under United States Dep’t of Justice, 52 FLRA 1093, 1103 (1997) (DOJ).
In this connection, the Union contends that the RD erroneously determined that
Schwinn has regular access to classified information and “accessed classified
information on numerous occasions while attending the semi-annual working group
meetings.” Applicationat 9 (quoting Challenges Decision at 7). The Union asserts that, although the record indicates that Schwinn attended working group
meetings in which some of the attendees had access to classified information in
“sidebar” meetings, the record does not indicate that Schwinn was one of the
attendees who had such access. Specifically, according to the Union, “Schwinn did not state that he was one of the individuals, and, in fact, he was not
one of those individuals[]” who had such access. Id. at 7. The Union claims that there is no evidence that Schwinn “ever has access to classified material
on a regular basis[,]” and, therefore, he should be included in the unit. Id. at 9.

Additionally, the Union contends
that the RD should have considered whether Owens is properly included in the unit,
that “the inclusion of Owens must be remanded to the RD for further
determination, and that the ballots in the election must be set aside and a new
election held.” Id. at 10.

B. Agency’s Opposition

The Agency contends that the RD did
not fail to apply established law, and did not commit a clear and prejudicial
error concerning a substantial factual matter, with regard to Schwinn and
Owens. See Opp’n at 4-5.

The Agency argues that the record
supports the RD’s conclusion that Schwinn is engaged in security work because
his duties involve the regular use of, or access to, classified information. Id. at 4. In this regard, the Agency contends that Schwinn testified that he
“regularly has access to classified information as a member of

the . . . working groups that deal with . . . classified
information ‘as to intelligence capabilities[.]’” Id. (quoting Tr. at
76). Further, the Agency asserts that “[a]t times, the working groups receive
classified briefings, and at other times, ‘sidebar type’ discussions touching
on classified matters occur at the working group meetings.” Id.
(quoting Tr. at 78). The Agency also asserts that Schwinn indicated that “one
of the locations where the working groups sometimes visit or meet is a location
where ‘you cannot enter [the] facility . . . without a secret clearance to
begin with.’” Id. at 4-5 (quoting Tr. at 79).

With regard to Owens, the Agency
argues that the Union “cites no Authority case law . . . supporting” its
position that the RD should have considered Owens’ status, and that the Union
“has not shown how the RD’s procedural decision not to determine a matter that
was not necessary to satisfy the purpose of the petition had the potential to
interfere with the free choice of the voters at the election.” Id. at 5.

IV. Analysis and Conclusions

A. A remand is necessary to determine whether the RD failed to
apply established law, or committed a clear and prejudicial error concerning a
substantial factual matter, by finding that Schwinn is excluded from the unit
under § 7112(b)(6) of the Statute.

Section
7112(b)(6) of the Statute excludes from bargaining units “any employee engaged
in intelligence, counterintelligence, investigative, or security work which
directly affects national security[.]” In order to determine whether an
employee is excluded under § 7112(b)(6), the Authority considers whether the
employee is: “(1) engaged in security work that (2) directly affects (3)
national security.” United States Dep’t of Defense, Pentagon Force Prot. Agency, Wash., D.C., 62 FLRA 164, 171 (2007). As relevant
here, an employee will be found to be “engaged in security work” within the
meaning of § 7112(b)(6) if the employee’s duties include “the regular use of,
or access to, classified information.” DOJ, 52 FLRA at 1103.

There
is no dispute that, in determining whether Schwinn engaged in security work,
the RD applied the proper test by considering whether Schwinn’s duties include
“the regular use of, or access to, classified information.” Challenges
Decision at 6 (citing Soc. Sec. Admin., Balt., Md., 59 FLRA 137, 144
(2003) (Chairman Cabaniss concurring and then-Member Pope dissenting in part) &
DOJ, 52 FLRA at 1103). However, for the reasons that follow, the record
is unclear as to the extent of Schwinn’s access to classified information, and
as a result, we are unable to determine whether the RD failed to apply
established law or committed a clear and prejudicial error concerning a
substantial factual matter with respect to Schwinn.

With
regard to access to classified information, Schwinn first testified: “The only
time that I’ve seen or had been in classified briefings or potential for
classified information is on the working groups as it relates to National
Geospatial Intelligence[.]” Tr. at 74. Then Schwinn testified that “some of
the working groups I’m on there’s potential and there’ve actually been at
least one that I recall within the last calendar year of a classified
briefing that I sat in on.” Id. at 76 (emphasis added). Additionally,
Schwinn testified that “there have been discussions during some of these
working groups that information as to intelligence capabilities [has] been
discussed and that information is classified as well.” Id. The Agency’s
attorney then asked Schwinn on cross-examination to clarify his statements. In
replying, Schwinn implied, but did not state, that he attended two sidebar
meetings where classified information was presented:

Q.
BY [AGENCY COUNSEL]: I just wanted to make sure. I’m confused because they
seem to be two different things. Did I misunderstand your testimony that, in
addition to the briefing, that you -- there have been some discussions at the
working group that touched --

A.
Yeah, there --

Q.
-- on classified matters?

A.
That is correct. And -- yes, there was one or two, sidebar type meetings
amongst individuals that attended it.

Q.
Okay

A.
Along with that one particular case that was a classified briefing.

Q. Okay.
So, it’s not true that there’s only one occasion where you --

A.
No, it’s --

Q.
No.

A.
It’s been a couple of times that it -- that you discuss certain information
within that realm, but no, it’s not on a -- it’s not all the time and that’s
all that I can recall.

Id. at 78-79.

Schwinn’s
responses to the Hearing Officer’s questions also make it unclear to what
extent Schwinn had access to classified information. Specifically, with regard
to Schwinn’s participation in the three working groups, the following exchange
occurred:

HEARING
OFFICER . . . : To your knowledge, does everyone who attends the meetings of
these workgroups have at least a secret security clearance?

THE
WITNESS: Not everyone that attends, but whenever the time comes that they will
discuss information that is classified, they will clear out the room for all
those people that do not have the appropriate clearance that I’m -- that is --
that I’m aware of.

HEARING
OFFICER . . . : All right. Now, how many of these meetings have you attended,
total?

THE
WITNESS: The Digital Working Group, at least 3 in the 18 months I’ve been
here. Same with the Digital Aeronautical Transformation Working Group, and the
VOWG, 3 times, again, every 6 months. And then a few of the other working
groups, not that they all deal with classified information, I’ve attended --

HEARING
OFFICER . . . : Let’s stick with the ones -- those three groups, how often do
they clear out people who don’t have classified security clearances?

THE
WITNESS: There’s only been twice that I recall.

Id. at 80-81. When asked,
“and your workgroups, have you been told that you will be performing work that
would include the use or access to classified information?”, Schwinn answered,
“Other than those instances, no.” Id. at 83.

Although
the record suggests that Schwinn had a security clearance, see id. at
32, 79-80, and further suggests that this would have enabled him to attend the
sidebar meetings referenced above, see id. at 78-81, the record does not
indicate that Schwinn had a security clearance at the time of the sidebar
meetings, or that Schwinn’s security clearance permitted him to attend the
sidebar meetings. Moreover, Schwinn’s testimony does not clarify the matter
further. In this regard, Schwinn testified:

[A]ny
of the workgroups, I suppose, could potentially have that [classified]
information, but the workgroups that I attend, they’re every six months. And
there are several different workgroups that I attend on about an -- about every
six month basis. That’s not to say there’s going to be information that’s
going to be classified at that time. I just know that when I accepted the
position, part of the requirement was I had to have the secret clearance to be
able to attend these meetings.

Id. at 79-80.

Although
the record indicates that Schwinn attended one classified briefing, and
suggests that he may have attended two sidebar meetings of working
groups in which classified information was presented, the record does not
indicate that he attended those sidebar meetings. Given the ambiguity of the
record, we are unable to assess the RD’s conclusion that “Schwinn accessed
classified information on numerous occasions while attending the
semi-annual working group meetings.” Challenges Decision at 7 (emphasis
added). That is, the record does not enable us to determine whether Schwinn’s
duties include “the regular use of, or access to, classified information,”
under DOJ, 52 FLRA 1103. Therefore, with regard to Schwinn, we are
unable to determine whether the RD failed to apply established law or committed
a clear and prejudicial error concerning a substantial factual matter.

Under
§ 2422.21(a) of the Authority’s Rules and Regulations, the hearing officer is
responsible for ensuring that the record is properly developed. Section
2422.21(a) states, in pertinent part: “The Hearing Officer will receive
evidence and inquire fully into the relevant and material facts concerning the
matters that are the subject of the hearing[.]” Similarly, § 2422.18(a) of the
Authority’s Rules and Regulations states: “Representation hearings are
considered investigatory and not adversarial. The purpose of the hearing is to
develop a full and complete record of relevant and material facts.”

Consistent
with these regulations, the Authority has emphasized the need for development
of a full and complete record in order to decide disputed factual issues in
representation cases. See United States Dep’t of Energy, Fed. Energy
Regulatory Comm’n, 22 FLRA 3, 5 (1986) (remand required where regional director
failed to rule on supervisory status of six individuals). Where an RD’s
decision does not contain sufficient evidence to allow the Authority to make
findings necessary to determine the outcome of a case, the Authority has
remanded such cases to the RD to reopen the record and obtain the necessary evidence.
See, e.g., United States Dep’t of Hous. and Urban Dev., 34 FLRA 207, 212
(1990). Here, as the record does not permit a determination regarding
Schwinn’s status, we grant the application as to Schwinn and remand this aspect
of the case to the RD to take whatever actions are necessary to make the
necessary findings and determination.

B. The
application fails to demonstrate that the RD erred by not considering whether
Owens is properly included in the petitioned-for unit.

The
Union alleges that the “evidence gathered through the hearing supports a
finding that . . . Owens [is] included in the bargaining unit[,]” and contends
that “the inclusion of Owens must be remanded to the RD for further
determination[.]” Application at 2, 10.

As
noted above, the record indicates that Owens did not vote in the election. See note
6, supra. As such, the RD’s decision with respect to Owens did not
affect the outcome of the election. The Union cites no Authority precedent,
rule, or regulation that the RD allegedly failed to apply.[9]
In addition, the Union does not explain how the RD committed a clear and
prejudicial error concerning a substantial factual matter. Further, the Union’s request that the “ballots in the election . . . be set aside and a new election
held” is unsupported. Application at 10. As the Union makes only bare
assertions, we find that the Union has neither demonstrated that the RD erred
by declining to consider Owens’ unit status nor provided any basis for setting
aside the election and directing a new one.[10]Cf. United States Dep’t of the Navy, Fleet Readiness Ctr. Sw., San Diego,
Cal., 63 FLRA 245, 252 (2009) (rejecting as bare assertion union’s unsubstantiated
argument in accretion case that separate unit would result in increased productivity
and economic savings). Accordingly, we deny the application with respect to
Owens.

V. Order

We deny the Union’s application with regard to
Owens, grant the application with regard to Schwinn, and remand the issue of
Schwinn’s status to the RD, for appropriate action consistent with this Order.

[2]
In the application, the Union states that it seeks review of “the Decision and
Order,” without specifying which decision and order. Application at 1.
However, the Union’s contention that the RD erroneously failed to consider the
bargaining unit eligibility of employee Barney C. Owens (Owens) contests a
determination that the RD made in the Objections Decision, and the Union’s contention that employee William Charles Schwinn (Schwinn) is properly included in
the unit contests a determination that the RD made in the Challenges Decision.
Accordingly, we construe the Union’s statement as seeking review of both
Decisions and Orders.

[4]
Although the RD does not mention Owens by name, the record makes clear that the
RD declined to consider Owens’ status when the RD ruled in the Objections
Decision that the scope of post-hearing briefs was properly limited to the two
ballots determinative of the election. See Objections Decision at 2, 4.

[5]
In the objections, the Union claimed, among other things, that the election
observer improperly permitted the Agency to concede the eligibility of
McCormick. See Order Denying Motion to Postpone Post-Hearing Briefs Due
Date (Motion Denial) at 1-2. The RD denied the Union’s objection in this
regard. Objections Decision at 4. As the Union does not contend that the RD
erred in this regard, we do not consider the matter further.

[6]
In this regard, the Agency asserts that Owens did not vote in the election,
Opp’n at 3, and the Union does not state anything to the contrary.

[7]
The Agency does not challenge the RD’s determination that Tutein is properly
included in the unit. Opp’n at 3 n.3. As such, we do not consider Tutein
further.

[8]
The record indicates that, in the consent election agreement, the parties
stipulated that a ballot cast by Schwinn, Tutein, McCormick, or Owens would be
challenged. See Objections Decision at 3; Application at 3.

[9]
In this connection, we note that the Union does not address § 2422.27 of the
Authority’s Regulations, which states, in pertinent part, that the “Regional
Director will investigate objections and/or determinative challenged ballots
that are sufficient in number to affect the results of the election.”
(Emphasis added).

[10]
We note that nothing in this Order would preclude the Union from filing a
petition for unit clarification with regard to Owens, should it wish to do so.